SC998

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC APP NO 04 OF 2009

IN THE MATTER OF THE BAIL ACT CHAPTER 340 AND IN THE MATTER OF A FURTHER 
APPLICATION FOR BAIL PURSUANT TO SECTION 13(2) OF THE BAIL ACT CHAPTER 340

BETWEEN

NOAH KARO
Applicant

AND

THE STATE
Respondent

Waigani: Lenalia, Yagi, & Makail JJ,
2009: 4th September & 26th October

PRACTICE & PROCEDURE - Application for bail - Earlier application for bail refused by National Court - Applicant has been charged with armed robbery - Grounds of - Change of circumstances - Police investigations completed - Application based on change of circumstances distinguished from "fresh" application - Whether ground sufficient for grant of bail - No change of circumstances established - Application refused - Bail Act - Sections 9(1) & 13(2).

Cases cited:

Michael Philip -v- The State (2007) N3217
Kuku Hayara & Mathew Yukai Mandalo (2009) N3596
Enana Idon -v- The State (2001) SC669
Re Thomas Marcus (1999) N1931
The State -v- Paul Tarccisius Tohian [1990] PNGLR 173
Paul Alois Kysely -v- The State [1980] PNGLR 36
Charlie Posanau & David Koyama -v- The State: SC App Nos 2 & 3 of 2009 (Unnumbered & Unreported Judgment of 01st May 2009)

Counsel:

Mr G Emilio, for Applicant
Messrs A Kupmain & J Wohuinangu, for Respondent

26th October, 2009

RULING

1. BY THE COURT: The Applicant is charged with armed robbery contrary to section 386(1)&(2) of the Criminal Code in relation to robbery of a branch of Bank of South Pacific Limited ("BSP bank") in Kerema on 17th May 2008. The allegation against the Applicant is that, he assisted in planning the robbery with those who committed it. At the relevant time, he was the Branch Manager of that branch when it was robbed of K830,000.00. Pending committal proceedings in the District Court, he applied for bail in the National Court and was refused bail on 2nd December 2008.

2. This is his second application for bail made pursuant to section 13(2) of the Bail Act Ch 340. ("Bail Act"). This section reads:

"13. Further application may be made after refusal.

(1) ………………...

(2) Where a person is refused bail by a Judge of the National Court he is entitled to apply for bail, immediately if he so desires, to the Supreme Court.

(3) Where an application is made under Subsection (1) or (2), the applicant shall produce a copy of the reasons given under Section 16.

(4) An application may be made under Subsection (1) or (2) whether or not bail was refused -

(a) under this Act (including this section) or under any other law; or

(b) on an application." (Underlining is ours).

3. We accept that under section 13(2) of the Bail Act, the Supreme Court as the next bail authority has jurisdiction to determine an application for bail after it is refused by the first bail authority. See Michael Philip -v- The State (2007) N3217 and Kuku Hayara & Mathew Yukai Mandalo (2009) N3596.

4. But it has not been argued before us if the application for bail based on change of circumstances should be made to a single judge of the Supreme Court as in the case of Enana Idon -v- The State (2001) SC669 or to the full bench of the Supreme Court. Also, there is some authority for the proposition that upon refusal of bail, a further application for bail may be made to the same bail authority like, the National Court so long as an Applicant is able to establish change of circumstances. See Re Thomas Marcus (1999) N1931.

5. In this case, as the question of whether the Supreme Court comprising a single judge or a full bench should hear an application for bail based on change of circumstances has not been fully argued before us, we express no firm opinion on that question until it is properly raised and argued on another occasion. For now, we will simply proceed to determine the application on the basis that the application for bail based on change of circumstances is properly before us. But we must make it abundantly clear that, the application for bail is based on change of circumstances. 

6. We stress this point because we consider an application for bail to the Supreme Court based on change of circumstances is different to a "fresh" application for bail to the Supreme Court. They are different because the principles governing their application are different. In an application for bail based on change of circumstances, an Applicant is required to establish that circumstances have changed since the last application for bail was refused and the onus is on the Applicant. He must demonstrate that the grounds upon which the National Court had refused bail have changed or no longer exists. Further, the circumstances must be relevant to the earlier application for bail. Only then will the Supreme Court grant bail.

7. In the case of a fresh application for bail, the Court may "rehear" the application for bail. This means that first, an Applicant may raise the same grounds relied upon in the last application for bail before the Supreme Court for consideration. In other words, an Applicant is not required to establish that circumstances have changed since the last application for bail was refused. Secondly, the Applicant is entitled to raise any new grounds to support the application for bail. See The State -v- Paul Tarccisius Tohian [1990] PNGLR 173.

8. Bearing in mind the difference between the two applications, we shall proceed to determine the application based on change of circumstances. We note the Applicant relies on a number of Affidavits to support the application. They are:

1. His Affidavit sworn on 10th January 2009 and filed on 20th March 2009;

2. Affidavit of John Brutnall sworn on 20th March 2009 and filed on 23rd March 2009; 

3. Affidavit of Rev Walo Karo Kilaorou sworn on 9th December 2008 and filed on 20th March 2009;

4. Affidavit of Kamu Karo sworn and filed on 20th March 2009; 

5. Affidavit of Gregory Oaego Emilio sworn and filed on 20th March 2009; 

6. Affidavit of Paul Pauna Ravu sworn on 9th December 2008 and filed on 20th March 2009;

7. Supplementary Affidavit of Kamu Karo sworn and filed on 2nd April 2009; and

8. Affidavit of Gregory Oaego Emilio sworn on 28th May 2009 and filed on 1st June 2009.

9. In his Affidavit, the Applicant says that, he is married and has 5 children. Presently, he is employed by BSP bank as its Assets Manager at its National Operations Centre in Port Moresby. If he is granted bail, he will reside at section 123, allotment 10, Kaubebe street in Port Moresby.

10. He is the last of the bank staff to be picked up by the police as a suspect of the Kerema BSP bank robbery. The other suspects who were earlier apprehended, interviewed and charged by the police were Alfred Harofere Sefe, Morgan Auka, Gabriel Ori and Tavere Hardie Mautaia. He completed his interview with the police on 3rd November 2008 and all potential witnesses including his own family members have provided their statements to the police. He denies the charge of armed robbery and says that he had no prior knowledge of it or was involved in planning it. He is prepared to put up K1,000.00 as cash bail if granted bail.

11. As for John Brutnall, he deposes in his Affidavit that he is the National Operations Manager for BSP bank and based at the headquarters in Port Moresby. He confirms that the Applicant is still on the payroll of BSP bank at the Branch Manager level. He further confirms that BSP bank considers the Applicant innocent in relation to the robbery of Kerema BSP bank until proven guilty by the Court. For this reason, he asks that bail be granted to the Applicant.

12. In his two Affidavits, Kamu Karo deposes that he is the elder brother of the Applicant and is also employed by BSP bank as Manager, Consumer Lending and based at its head office in Port Moresby. He is aware that on 2nd December 2008, the National Court refused the Applicant’s application for bail. However, he is prepared to be a guarantor of the Applicant in this application and is prepared to pay K1,000.00 cash surety if bail is granted to the Applicant.

13. He is also aware that police investigations have been completed since the Applicant was interviewed on 3rd November 2008. Other potential witnesses have also provided their statements to the police. He says that, the Applicant is innocent and will prove his innocence at the trial. That is the reason BSP bank has retained the Applicant on the payroll after he was redeployed to its National Operations Centre as its Assets Manager.

14. In relation to Rev Walo Karo Kilaorou, he deposes in his Affidavit that he is a Reverend and Minister of the United Church of Papua New Guinea. He was the most recent Minister for Hula United Church circuit based at the Hula circuit in the Central Province. He found the Applicant an honest and outgoing person during his association and interaction with the Applicant prior to the alleged offence. The Applicant is one of the most effective members of the Hula United Church congregation whenever he visited his home village. Rev Kilaorou is prepared to be a guarantor of the Applicant and will ensure that the Applicant will comply with the bail conditions if granted bail.

15. As for Paul Pauna Ravu, he deposes in his Affidavit that he is the Chairman of Konerigo clan of Hula village based in Port Moresby. He knows the Applicant because the Applicant is a member and also a former treasurer of the clan group. He also knows the Applicant since their childhood days and says that the Applicant is a dedicated and passionate Christian serving Hula community and Konerigo clan at various capacities.

16. In his two Affidavits, Mr Emilio first, annexes a copy of the Bail Refusal Certificate of 2nd December 2008 and secondly, a copy of the transcript of the National Court proceeding containing the reasons of Mogish J, refusing the Applicant’s application for bail. At p 8 of the transcript, we note his Honour’s reasons were that:

1. Substantial amount of money being stolen have not being recovered;

2. Firearms were involved and none have been recovered;

3. The gang which the Applicant is alleged to have belonged to is responsible for a number of bank robberies;

4. Other accomplices have been remanded in custody; and

5. Police investigations are still continuing.

17. In his submissions, Mr Emilio of counsel for the Applicant submits that bail should be granted to the Applicant because circumstances have changed since the last application for bail was made. He submits that since the last application for bail, police investigations have been completed, hence there is no longer a threat that the Applicant would interfere with the investigations. He further submits that the Applicant has been committed to stand trial in the National Court and all the pre-trial matters have also been completed. All that is needed is for the Court to allocate a date or dates for trial. The completion of the police investigations meant that, the chances of the Applicant interfering with the investigations is nil or minimal. This constitutes a change of circumstances and the Court should grant bail to the Applicant.

18. Mr Emilio also submits that the Applicant is genuine and sincere in bringing the application for bail because he has no reason to abscond bail if granted bail. To emphasize the Applicant’s genuineness and sincerity of the Applicant, Mr Emilio points us to first, the amount of cash surety the proposed guarantors of the Applicant are willing to put up for the Applicant if bail is granted and secondly, the cash bail the Applicant is also willing to pay. They pledged K1,000.00 each for cash surety and cash bail respectively. Thirdly, he points us to the fact that the Applicant is still on the payroll of BSP bank. This shows that BSP bank is still interested in retaining the services of the Applicant and is spending money without enjoying the benefit of the Applicant’s services. 

19. Finally, Mr Emilio submits that the Applicant is a man of great standing in the community where he hails and has unfailing faith in God. He is also a dedicated member of the Hula United Church and is well respected by his church minister and members. Witnesses have come forth before this Court and have testified of all these attributes. For these reasons, the Court should grant bail to the Applicant.

20. The application is opposed by the State. Lead counsel for the State, Mr Kupmain submits that bail should be refused because the Applicant has not shown that circumstances had changed since the last application for bail was made. He submits that the claim by the Applicant that since the last application for bail, police investigations have been completed hence, there is no longer a threat that he would interfere with the investigations, is not a change of circumstances. The fact that the police have completed their investigations into the allegations against the Applicant is part and parcel of the police functions as far as prosecution of alleged offenders is concern. For this reason, it cannot constitute a change of circumstances and bail should be refused.

21. In the alternative, he submits that, if the Court accepts that the completion of police investigations into allegations against the Applicant constitute change of circumstances, then, that alone is insufficient to justify grant of bail. This is because, there are other grounds present in this case that the Applicant has not shown would operate against the Applicant. These grounds are the ones that the National Court refused bail.

22. Having considered all the arguments for and against the application, we agree with the submissions of the State that the completion of the police investigations is not a change of circumstances. In our view, it is part and parcel of the police functions in so far as prosecution of alleged offenders is concerned. We consider that, the risk of interfering with police investigations is relevant to just one part of the police functions. It could be said, police investigations is the third stage of the criminal prosecution process, following first, the lodgment of a complaint and secondly, the arrest and charging of an alleged offender. The fourth stage is the actual Court hearing. Inherent in the Court hearing is the threat to witnesses or potential witnesses for the State who will testify against the alleged offender.

23. The point is, it is simply not a matter of completing the police investigations that the threat of interference of witnesses by an alleged offender is abated. The threat is always there or runs through the whole process of criminal prosecution of an alleged offender once it is raised by the State under section 9(1)(f) of the Bail Act. That is, from stage one to stage four. In our view, once the State raises the likelihood of the Applicant interfering with witnesses or the person who has lodged the complaint against him under section 9(1)(f) of the Bail Act, the onus is on the Applicant to prove otherwise. It is immaterial if the threat materializes. See Paul Alois Kysely -v- The State [1980] PNGLR 36.

24. In this case, whilst we accept that police investigations have been completed in respect of the Applicant’s case, we are not persuaded that the threat against witnesses or potential witnesses for the State is abated. In fact, we note that the Applicant is still on the pay roll of BSP bank and if released on bail, will return straight to work. In our view, this makes the situation less favourable for the Applicant because it opens up the potential of interference with colleagues and other staff of BSP bank by the Applicant. For it must not be forgotten that the Applicant is still awaiting trial in the National Court and his own colleagues and other bank staff may become witnesses against him. We consider that the threat of interfering with the witnesses still exists in this case.

25. Our view is fortified by the fact that when the Court asked Mr Emilio to cite any Supreme Court authorities to support his contention that the completion of police investigations constitutes a change of circumstances, he was unable to refer us to any. But the ground relied upon by the Applicant was the same ground advanced by the Applicants in Charles Posanau & David Koyama -v- The State: SC App Nos 2 & 3 of 2009 (Unnumbered & Unreported Judgment of 01st May 2009) when they applied for bail in the Supreme Court on 27th April of this year. In that case, the Supreme Court found inter-alia that, there was no real change of circumstances although we note the Supreme Court did not state precisely why it found that there was no real change of circumstances. The Supreme Court refused their application.

26. For these reasons, we are not satisfied that the Applicant has established a change of circumstances. On the other hand, there is still the presence of likelihood of interference of State witnesses by the Applicant under section 9(1)(f) of the Bail Act.
Having found that the completion of police investigations is not a change of circumstances, there still remains the other grounds in which the National Court had refused bail to consider. As noted above, apart from the reason that police investigations have not been completed, the other reasons the National Court refused bail are:

1. Substantial amount of money being stolen have not being recovered;

2. Firearms were involved and none have been recovered;

3. The gang which the Applicant is alleged to have belonged to is responsible for a number of bank robberies; and

4. Other accomplices have been remanded in custody.

27. We note the Applicant has not suggested that these grounds no longer exist or have changed since the last application for bail was refused by the National Court. Given this position, we assume that the circumstances have not changed as far as the above grounds are concerned. That being the case, it is our view that the grounds for refusal of bail by the National Court remain unchanged. 

28. In other words, the above grounds are the very grounds that disqualified the Applicant for bail under section 9(1) of the Bail Act in the National Court. First, there is the non recovery of substantial amount of money under section 9(1)(g). Secondly, there is the presence of the use of firearms under section 9(1)(c)(iii) and thirdly, the presence of threat of violence to other persons under section 9(1)(c)(ii). In our view, the Applicant has not shown to us that the above grounds no longer exists or have changed. These grounds operate against him.

29. Likewise, we consider Mr Emilio’s submission in respect of the Applicant’s sincerity and genuineness where a total of K2,000.00 has been pledged as cash bail and cash surety irrelevant. This is because it is not one of the grounds for refusal of bail by the National Court. In our view, it is a new ground for bail and the application before us is not a fresh application where this ground can be raised. We reject this ground.

30. We also consider Mr Emilio’s submission that the Applicant is innocent and should be granted bail irrelevant and misconceived. Innocence of the Applicant is neither a ground for grant of bail nor a consideration under section 9(1) of the Bail Act. There is abundance of case authorities on this point in this jurisdiction and we need not refer to all but cite only two in Kuku Hayara -v- The State (2008) N3488 and Mapi Meck & 2 Ors -v- The State (2008) N3511. We reject this ground.

31. Finally, we consider Mr Emilio’s submission that the Applicant is a well respected member of his community and a committed Christian, not only irrelevant, but misconceived. This ground was not raised and considered by Mogish J, in the National Court. It is a new ground for bail and should be raised in a fresh application for bail; not in the present application based on change of circumstances.

32. For all the above reasons, we are not satisfied that the Applicant has made out his application for bail. Bail is refused accordingly. 

___________________________________

Emilio & Associates: Lawyers for the Applicant
Acting Public Prosecutor: Lawyers for the Respondent